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Free Speech & The Law Obscene Publications Obscene Publications Free Speech & The Law This is part of a series of guides produced by Index on Censorship on the laws related to freedom of expression in England and Wales. They are intended to help understand the protections that exists for free speech and where the law currently permits restrictions. Cover image by Thomas Hawk (CC BY-NC 2.0) This guide was produced by Index on Censorship, in partnership with Clifford Chance. ​ ​ Free Speech & The Law - Obscene Publications Guide – Index on Censorship Table of contents Obscene publications offences explained 3 What does Article 10(2) of the European Convention on Human Rights say? 3 Overview of UK laws 7 The Obscene Publications Act 1959 7 What is “obscene”? 7 Offences 8 Update to the CPS guidance on obscenity 9 Defences under the Obscene Publications Act 1959 10 Theatres Act 1968 11 Indecent Displays (Control) Act 1981 12 Outraging public decency 12 Criminal Justice and Immigration Act 2008 13 Where can I find out more information about obscenity law? 14 Page 2 of 14 Free Speech & The Law - Obscene Publications Guide – Index on Censorship Obscene publications offences explained It is nearly 300 years since bookseller Edmund Curll was convicted in 1727 on a ​ ​ charge of obscenity in an English court for his publication of the mildly pornographic Venus in the Cloister or The Nun in Her Smock. Obscenity was thereafter recognised as a crime under common law. Since then, the definition of obscenity has narrowed from the broad concept under common law of engendering “revulsion, disgust or outrage” (although this remains the definition of obscenity for the offence of outraging public decency) to the notoriously vague current definition under the Obscene ​ Publications Act 1959 of “tending to deprave and corrupt”. ​ Obscenity law is concerned with protecting “public morals” – it seeks to steer people away from immoral or criminal behaviour and vice. The European Court of Human ​ Rights (ECtHR) has recognised that convictions under the Obscene Publications Act ​ 1959 – which criminalises publishing “obscene” material – interfere with individuals’ rights to free expression under Article 10 of the European Convention on Human ​ Rights (ECHR). However, in the 1972 case of Richard Handyside v United Kingdom, ​ ​ ​ ​ the ECtHR acknowledged that prosecutions under the act were permissible under the ​ restrictions set out in Article 10(2) of the ECHR where freedom of expression can be ​ restricted to protect “morals in a democratic society.” ​ ​ What does Article 10(2) of the European Convention on Human Rights say? Article 10(2) says that the right to freedom of expression “carries with it duties and responsibilities”. Because of this, the right to free expression may be subject to restrictions and conditions that are necessary in a democratic society and are set out clearly in the law. To be valid, any restrictions must be for one or more of the following purposes: national security, public safety, territorial integrity, preventing crime or disorder, protecting health or morals, protecting the reputation or rights of others, preventing the disclosure of information received in confidence, and for maintaining the authority and impartiality of the judiciary. Page 3 of 14 Free Speech & The Law - Obscene Publications Guide – Index on Censorship Case Study: Richard Handyside and The Little Red Schoolbook The Richard Handyside case was about The Little Red Schoolbook. This was a ​ ​ book intended for teenagers written by two Danish authors and intended to be published in the UK by Handyside, the owner of publishing house Stage 1. It had chapters on education, learning, teachers, pupils and “the system”. However, it also had a section on sex, which contained sub-sections on masturbation, orgasm, intercourse and petting, contraceptives, wet dreams, menstruation, child molesters or “dirty old men”, pornography, homosexuality and impotence. There were also references to smoking pot and references to porn as “a harmless pleasure”. In March 1971, the Daily Mirror, The Sunday Times and The Daily Telegraph published accounts of the book’s contents, leading to a number of complaints to the Director of Public Prosecutions, who asked the police to investigate. Following a criminal trial, Handyside was convicted of possessing 1,208 obscene books for publication for gain. He was fined and the books were ordered to be destroyed. The question the ECtHR had to consider was whether Handyside’s criminal conviction (plus the fine and the destruction of the books) amounted to a breach of his Article 10 rights to freedom of expression. The court decided that, since there was no “uniform European conception of morals”, the authorities in the UK were better placed than the European judges to determine the need for acts such as the Obscene Publications Act. It also said the British judges were entitled, in the exercise of their discretion, to think that the Schoolbook “would have pernicious effects on the morals of many of the children and adolescents who would read it”. The court found no breach of Handyside’s Article 10 rights. However, the case did establish an important precedent because it established the ​ principle that “freedom of expression…is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the state or any sector of the population.” Page 4 of 14 Free Speech & The Law - Obscene Publications Guide – Index on Censorship Case study: Obscene publications and the internet The case of R v Perrin (Stephane Laurent) 2002 established that the creation of a ​ ​ ​ ​ web page was sufficient to establish publication and that a jury only had to be satisfied that there was a likelihood of vulnerable persons seeing the obscene material. The prosecution did not have to demonstrate that such a person actually did or would see it. Pornographic content on a web page that has the tendency to deprave and corrupt the viewer would therefore be sufficient to establish criminal liability and the court found the in this instance did not violate the defendant's right to freedom of expression under Article 10 of the European Convention on Human Rights. However, subsequent cases have tested this assumption (see Case dropped against Girls Aloud blogger below). In recent years, there have been multiple and increased calls to abolish the Obscene Publications Act. Because prosecutions under the act require convincing a jury that a video, sound recording or image “tends to deprave or corrupt” those receiving it – a standard judged against prevailing moral standards – there have been many recent high-profile acquittals in cases where jurors have simply been unmoved by the potentially obscene material in front of them. Case study: Shocked then bored In 2012, Michael Peacock was unanimously acquitted by 12 members of a jury at ​ ​ Southwark Crown Court on six counts of publishing obscene articles likely to “deprave and corrupt”. He had sold hardcore gay pornography DVDs online from his flat in Brixton. The police saw adverts and operated an undercover purchase. They found six DVDs featuring hardcore pornography and Peacock was prosecuted. The jury was shown hours of footage from the DVDs. Peacock’s defence solicitor remarked that although the jury “were quite shocked initially, they started to look quite bored very quickly”. The jury returned a not-guilty verdict. Page 5 of 14 Free Speech & The Law - Obscene Publications Guide – Index on Censorship Case study: Girls Aloud blogger In 2008, a case was dropped against a blogger charged with obscenity after he ​ ​ wrote an erotic story detailing the kidnap, sexual torture and murder of pop group Girls Aloud. A key part of the prosecution’s case against the blogger was that his post could be easily accessed by young Girls Aloud fans. However, shortly before the trial, an IT expert gave evidence that the blog could be found only by people specifically searching for it. On discovering this, the prosecution dropped the case and the judge issued a not-guilty verdict. While many of the obscenity laws created in the latter half of the 20th century remain in place, in recent years the risk of prosecution has reduced. Following the Peacock case, the Crown Prosecution Service (CPS) recently changed its guidance to narrow ​ ​ what it considers “obscene”. Consensual legal sexual acts between adults such as spanking, fisting, BDSM and female ejaculation are no longer considered obscene by prosecutors, and so people who distribute or sell videos or images of such acts will likely no longer be prosecuted under the Obscene Publications Act. Equally, the number of prosecutions and convictions secured under obscenity laws in England and Wales has dropped dramatically in recent years. For example, while in 1984 there were 429 successful convictions under the Obscene Publications Act 1959, in 2014 there were just 10. Page 6 of 14 Free Speech & The Law - Obscene Publications Guide – Index on Censorship Overview of UK laws The UK laws applicable to the broad area of obscenity include: ● Obscene Publications Act 1959 ● Obscene Publications Act 1964 ● Theatres Act 1968 ● The common law offence of outraging public decency ● Indecent Displays (Control) Act 1981 ● Video Recordings Act 1984 ● Protection of Children Act 1978 (please see the Child Protection Guide) ● Criminal Justice Act 1988 (Possession of indecent photograph of a child - please see Child Protection Guide) ● Broadcasting Act 1990 ● Postal Services Act 2000 ● Criminal Justice and Immigration Act 2008 (covering the definition of “extreme pornography”) Below we highlight the main offences that might concern freedom of expression and the law. The Obscene Publications Act 1959 The offence of publishing an obscene article, or possessing one for gain, is set out in the Obscene Publications Act 1959. This act states the legal test for obscenity to be ​ ​ applied to the offence and certain defences to the crime.
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